DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 11 March 2019,
by Jon New m an (USA), DRC judge,
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C , Country D
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the cas e
1.
On 18 August 2018, the player of Country B, Player A (hereinafter: Claimant), and
the club of Country D, Club C (hereinafter: Respondent), signed an employment
contract valid as from 18 August 2018 until 5 December 2018.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant, inter alia, a monthly salary of USD 2,000 payable “at the end of every
Gregorian month”.
3.
By correspondence dated 8 January 2019, the Claimant put the Respondent in
default of payment of the total amount of USD 4,000 corresponding to the salaries
of November and December 2018, setting a time limit expiring on 18 January 2019 in
order to remedy the default.
4.
On 19 December 2018, the Claimant lodged a claim against the Respondent in front
of FIFA asking that the Respondent be ordered to pay to him overdue payables in
the amount of USD 4,000 corresponding to the salaries of November and December
2018.
5.
In spite of having been invited to do so, the Respondent has not replied to the claim.
II.
Cons iderations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
matter at hand. In this respect, he took note that the present matter was submitted
to FIFA on 19 December 2018. Consequently, the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the
Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction
with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition
2018) he is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player of
Country B and a club of Country D.
3.
Furthermore, the DRC judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he confirmed that in accordance with
art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players
(edition 2018), and considering that the present claim was lodged on 19 December
2018, the 2018 edition of said regulations (hereinafter: Regulations) is applicable to
the matter at hand as to the substance.
Player A, Country B / Club C, Country D
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4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this respect,
the DRC judge started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation on file. However, the DRC judge emphasized
that in the following considerations he will refer only to the facts, arguments and
documentary evidence, which he considered pertinent for the assessment of the
matter at hand.
5.
Having said this, the DRC judge acknowledged that the Claimant and the
Respondent signed an employment contract valid as from 18 August 2018 until 5
December 2018, in accordance with which the Claimant was entitled to receive from
the Respondent, inter alia, a monthly salary of USD 2,000 payable “at the end of
every Gregorian month”.
6.
The DRC judge further noted that the Claimant lodged a claim against the
Respondent in front of FIFA, maintaining that the Respondent has overdue payables
towards him in the total amount of USD 4,000 corresponding to the salaries of
November and December 2018.
7.
In this context, the DRC judge took particular note of the fact that, on 8 January
2019, the Claimant put the Respondent in default of payment of the
aforementioned amounts, setting a time limit expiring on 18 January 2019 in order
to remedy the default.
8.
Consequently, the DRC judge concluded that, insofar as the salary for November is
concerned, the Claimant had duly proceeded in accordance with art. 12bis par. 3 of
the Regulations, which stipulates that the creditor (player or club) must have put the
debtor club in default in writing and have granted a deadline of at least ten days for
the debtor club to comply with its financial obligation(s).
9.
Subsequently, the DRC judge took into account that the Respondent, for its part,
failed to present its response to the claim of the Claimant, in spite of having been
invited to do so. In this way, the DRC judge considered that the Respondent
renounced its right to defence and thus accepted the allegations of the Claimant.
10.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules he shall take a
decision upon the basis of the documents on file, in other words, upon the
statements and documents presented by the Claimant.
11.
Having said this, the DRC judge acknowledged that, in accordance with the
employment contract provided by the Claimant, the Respondent was obliged to pay
to the Claimant a monthly salary of USD 2,000, payable at the end of each month.
Player A, Country B / Club C, Country D
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12.
Taking into account the documentation presented by the Claimant in support of his
petition, the DRC judge concluded that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence.
13.
On account of the aforementioned considerations, the DRC judge established that
the Respondent failed to remit the Claimant’s remuneration in the total amount of
USD 4,000, corresponding to the salaries of November and December 2018.
14.
In addition, the DRC judge established that the Respondent had delayed a due
payment for more than 30 days without a prima facie contractual basis.
Nevertheless, the DRC Judge underlined that the default notice only partially
covered the overdue payables criteria, in the sense that not all amounts claimed had
been overdue for 30 days when the Claimant sent its default notice.
15.
Consequently, the DRC judge decided that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant the
total amount of USD 4,000 out of which only the amount of USD 2,000 must be
considered as overdue payables in the sense of art. 12bis of the Regulations.
16.
In continuation, taking into account the consideration under number II./14. above,
the DRC judge referred to art.12bis par. 2 of the Regulations which stipulates that
any club found to have delayed a due payment for more than 30 days without a
prima facie contractual basis may be sanctioned in accordance with art. 12bis par. 4
of the Regulations.
17.
The DRC judge established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the Respondent. On account of the above
and bearing in mind that the Respondent did not reply to the claim of the Claimant,
the DRC judge decided to impose a fine on the Respondent in accordance with art.
12bis par. 4 lit. c) of the Regulations. Furthermore, taking into consideration the
amount due of USD 2,000 as overdue payables, the DRC judge regarded a fine
amounting to CHF 1,000 as appropriate and hence decided to impose said fine on
the Respondent.
18.
In this connection, the DRC judge wished to highlight that a repeated offence will
be considered as an aggravating circumstance and lead to more severe penalty in
accordance with art. 12bis par. 6 of the Regulations.
III.
Decis ion of the DRC judge
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, the amount of USD 4,000.
Player A, Country B / Club C, Country D
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3.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry
of the aforementioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal decision.
4.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the DRC judge
of every payment received.
5.
The Respondent is ordered to pay a fine in the amount of CHF 1,000. The fine is to
be paid w ithin 30 day s of notification of the present decision to FIFA to the
following bank account with reference to case nr. XXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit
for filing the statement of appeal, the appellant shall file a brief stating the facts and
legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
Player A, Country B / Club C, Country D
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For the DRC judge:
Emilio García Silvero
Chief Legal Officer
Encl: CAS directives
Player A, Country B / Club C, Country D
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